Judicial interference in arbitration can be warranted in exceptional circumstances, especially where the tribunal exceeds its jurisdiction.

1. Mr. Mishra, learned a dvocate appear s on behalf of petitioner and submits, impugned is order dated 23rd December, 2022 made by the arbitral Tribunal in directing on provision in section 26, Arbitration and Conciliation Act, 1996 , at instance of opposite party-claimant in the reference. He submits, the direction for appointment of expert evaluator was allowed, with consequential direction upon parties to suggest names.

2. He draws attention to claim made by opposite party and his client’s counter claim, as respondent in the reference. He demonstrates therefrom, the claim and counter claim are simply money claims. As such, expanding scope of the reference, by including evaluation of assets, would expose his client to risk of an award being made beyond four corners of the reference.

3. Mr. Mishra, submits, the Supreme Court by its judgment inBhavenConstruction vs. Executive Engineer, Sardar Sarovar Narmada NigamLimited, reported in(2022) 1 SCC 75said, inter alia, interference is possible in rarest of rare case. This is one such as it will be an un-obtrusive expansion of scope of the reference, to his client’s prejudice.

4. He relies on view taken by a learned single Judge in Odisha State Road Transport Corporation, Bhubaneswar vs. ARSS Bus Terminal Pvt. Ltd., BBSR, reported in 2023 (I) ILR -CUT- 253 paragraph 7. It is reproduced below.

“7. This Court after going through the view expressed by the Hon’ble Apex Court in the aforementioned cases, finds that though intervention of this Court with regard to the order passed under the Act is very limited, but there is not a clear bar for such intervention by this Court in exercise of its power under Article 227 of the Constitution of India. Therefore, this Court placing reliance on the decisions of the Hon’ble Apex Court as cited supra held the writ petition as maintainable before this Court.”

(emphasis supplied)

5. He then relies on order dated 8^th March, 2022, made by this Bench in WP(C) no.20908 of 2020 (Odisha Hydro Power Corporation Ltd. vs. Traflgar House Construction (T), (TSSJV), paragraph 9, reproduced below.

“9. The position on declaration of law by the Supreme Court regarding interference in writ jurisdiction appears to be as has been submitted by Mr. Mohanty. This is a case where there has been demonstration, of the substituted tribunal having exercised discretion not provided by relevant provision in the statute. As such it appears to be a case where the exercise of discretion was lacking in inherent jurisdiction, as not sourced from the power to exercise discretion given or conferred by sub-sections (3) and (4) in section 15. The case consequently qualifies as an exceptionally rare case since challenge to the award that may ultimately be passed, under section 34, cannot include a ground that may arise on the working of section 15.”

6. Mr. Panda, learned advocate appearing on behalf of opposite party, relies on judgment of the Supreme Court in SBP & Co. v. Patel Engineering Ltd., reported in (2005) 8 SCC 618 , paragraph 45 (SCC Online print). Last sentence in the paragraph is reproduced below.

“xx xx xx We, therefore, disapprove of the stand adopted by some of the High Courts that any order passed by the Arbitral Tribunal is capable of being corrected by the High Court under Article 226 or 227 of the Constitution. Such an intervention by the High Courts is not permissible.”

(emphasis supplied)

He submits, even if there is patent illegality in impugned order, no interference is possible at this stage, by operation of provision under section 5. This is because alleged patent illegality will continue to making of the award, which can then be challenged un